United States District Court, D. Maryland
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE
12, 2017, Plaintiff Kevin Troy Cullip petitioned this Court
to review the Social Security Administration's
[“SSA's”] final decision to deny his claim
for benefits. [ECF No. 1]. I have considered the parties'
cross-motions for summary judgment, and Mr. Cullip's
reply. [ECF Nos. 17, 20, 21]. I find that no hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). This
Court must uphold the decision of the Agency if it is
supported by substantial evidence and if the Agency employed
proper legal standards. See 42 U.S.C. §§
405(g), 1383(c)(3); see also Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996). Under that standard, I will
deny both motions, reverse the SSA's decision in part,
and remand the case to the SSA for further consideration.
This letter explains my rationale.
Cullip filed a claim for Supplemental Security Income
(“SSI”) on April 12, 2013, alleging a disability
onset date of March 17, 2004. (Tr. 161-66). His claim was
denied initially and on reconsideration. (Tr. 88-108). A
hearing was held on October 29, 2015, before an
Administrative Law Judge (“ALJ”). (Tr. 36-82).
Following the hearing, the ALJ determined that Mr. Cullip was
not disabled within the meaning of the Social Security Act
during the relevant time frame. (Tr. 17-35). The Appeals
Council denied Mr. Cullip's request for review, (Tr.
1-6), so the ALJ's decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Cullip suffered from the severe impairments of
“dysfunction of major joints and affective
disorder.” (Tr. 22). Despite these impairments, the ALJ
determined that Mr. Cullip retained the residual functional
capacity (“RFC”) to:
perform light work as defined in 20 CFR 416.967(b) except
that claimant is able to stand for up to one hour and sit for
up to one hour and can alternate between the two positions
throughout the workday. He can also occasionally climb ramps
or stairs, but can never climb ladders, ropes or scaffolds;
he can occasionally balance, stoop, kneel, crouch and crawl.
Further, the claimant may have occasional exposure to
hazards, such as unguarded moving machinery and unprotected
heights. He can also perform work that does not require him
to move his neck up and down or left and right more than 45
degrees from center. In addition, he is limited to simple,
routine, and repetitive tasks in a work environment involving
only simple, work-related decisions, and with few, if any,
(Tr. 24-25). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Cullip
could perform several jobs existing in significant numbers in
the national economy. (Tr. 30). Accordingly, the ALJ
determined that Mr. Cullip was not disabled. (Tr. 30-31).
Cullip raises two primary issues on appeal: (1) that the
ALJ's decision did not comport with the Fourth
Circuit's holding in Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015); and (2) that the ALJ improperly failed
to consider a conflict between the VE's testimony and the
Dictionary of Occupational Titles. I agree that the
ALJ's decision does not comport with Mascio, and
that remand is therefore required. In remanding for
additional explanation, I express no opinion as to whether
the ALJ's ultimate conclusion that Mr. Cullip is not
entitled to benefits is correct.
with his successful argument, Mr. Cullip argues that the ALJ
failed to account for his moderate difficulties in
concentration, persistence, or pace in the RFC assessment, as
required by the Fourth Circuit's holding in
Mascio. In Mascio, the Fourth Circuit
determined that remand was appropriate for three distinct
reasons, including, as pertinent to this case, the inadequacy
of the ALJ's evaluation of “moderate
difficulties” in concentration, persistence, or pace.
780 F.3d at 638. At step three of the sequential evaluation,
the ALJ determines whether a claimant's impairments meet
or medically equal any of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Listings 12.00 et
seq. pertain to mental impairments. 20 C.F.R. Pt. 404,
Subpt. P, App. 1 §§ 12.00-12.15 (2015). The
relevant listings therein consist of: (1) a brief statement
describing a subject disorder; (2) “paragraph A
criteria, ” which consists of a set of medical
findings; and (3) “paragraph B criteria, ” which
consists of a set of impairment-related functional
limitations. Id. § 12.00(A). If both the
paragraph A criteria and the paragraph B criteria are
satisfied, the ALJ will determine that the claimant meets the
listed impairment. Id.
B consists of four broad functional areas: (1) activities of
daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation.
Id. § 12.00(C). The ALJ employs the
“special technique” to rate a claimant's
degree of limitation in each area, based on the extent to
which the claimant's impairment “interferes with
[the claimant's] ability to function independently,
appropriately, effectively, and on a sustained basis.”
20 C.F.R. § 404.1520a(c)(2). The ALJ uses a five-point
scale to rate a claimant's degree of limitation in the
first three areas: none, mild, moderate, marked, or extreme.
Id. § 404.1520a(c)(4). To satisfy paragraph B,
a claimant must exhibit either “marked”
limitations in two of the first three areas, or
“marked” limitation in one of the first three
areas with repeated episodes of decompensation. See,
e.g., 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§
12.04, 12.06. Marked limitations “may arise when
several activities or functions are impaired, or even when
only one is impaired, as long as the degree of limitation is
such as to interfere seriously with [the claimant's]
ability to function.” Id. § 12.00(C).
functional area of “[c]oncentration, persistence, or
pace refers to the ability to sustain focused attention and
concentration sufficiently long to permit the timely and
appropriate completion of tasks commonly found in work
settings.” Id. § 12.00(C)(3). Social
Security regulations do not define limitations in
concentration, persistence, or pace “by a specific
number of tasks that [a claimant is] unable to
complete.” Id. The regulations, however, offer
little guidance on the meaning of “moderate”
Fourth Circuit remanded Mascio because the
hypothetical the ALJ posed to the VE-and the corresponding
RFC assessment-did not include any mental limitations other
than unskilled work, despite the fact that, at step three of
the sequential evaluation, the ALJ determined that the
claimant had moderate difficulties in maintaining
concentration, persistence, or pace. 780 F.3d at 637-38. The
Fourth Circuit specifically held that it “agree[s] with
other circuits that an ALJ does not account for a
claimant's limitations in concentration, persistence, and
pace by restricting the hypothetical question to simple,
routine tasks or unskilled work.” Id. at 638
(quoting Winschel v. Comm'r of Soc.
Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)) (internal
quotation marks omitted). In so holding, the Fourth Circuit
emphasized the distinction between the ability to perform
simple tasks and the ability to stay on task, stating that
“[o]nly the latter limitation would account for a
claimant's limitation in concentration, persistence, or
pace.” Id. Although the Fourth Circuit noted
that the ALJ's error might have been cured by an
explanation as to why the claimant's moderate
difficulties in concentration, persistence, or pace did not
translate into a limitation in the claimant's RFC, it
held that, absent such an explanation, remand was necessary.
the ALJ found that Mr. Cullip had “moderate
difficulties” in concentration, persistence, or pace.
(Tr. 24). The entirety of the ALJ's analysis states:
There is no evidence of record that he has any significant
thought disorder or cognitive deficits. At the hearing, his
testimony was generally responsive, coherent, and ...